Bill would halt legal fees for ACLU in church-state cases

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WASHINGTON — It's not fair for taxpayers to pay the legal bills for organizations such as the American Civil Liberties Union (ACLU), says Sen. Sam Brownback.

The Kansas Republican has reintroduced the Public Expression of Religion Act (PERA), which seeks to change how attorneys' fees are granted in cases involving the Establishment Clause of the First Amendment.

Current law allows attorneys to recover their fees in many kinds of cases, including suits against government dealing with civil rights and the Establishment Clause, which says "Congress shall make no law respecting an establishment of religion." For instance, if an attorney wins an Establishment Clause case asking a city government to remove the Ten Commandments from a courthouse, the city may be required to pay for the removal and the legal fees for both sides of the case.

"Currently, many small towns comply with the demands of the ACLU rather than risk going to trial and paying hundreds of thousands of dollars in legal fees to the ACLU if they lose the case," Brownback said.

Supporters of the bill include the Southern Baptist Ethics & Religious Liberty Commission, American Legion, Religious Freedom Coalition, Eagle Forum, Traditional Values Coalition, Concerned Women for America, American Civil Rights Union, Catholic League for Religious and Civil Rights, Prison Fellowship Ministries and the National Religious Broadcasters.

"We believe it's an important bill to remove the financial incentive as motivation for filing First Amendment lawsuits," said Barrett Duke, the ERLC's vice president for public policy and research.

Americans United for Separation of Church and State and the ACLU have condemned the measure, the latter calling it a direct attack on freedom of religion.

"Senator Brownback and those who support the Public Expression of Religion Act seek to put roadblocks in the way of those who want to protect their constitutional rights by filing cases charging violations of the Establishment Clause," said Rob Boston, assistant director of communications for Americans United.

Supporters of the bill want it to ensure that each party in a lawsuit involving a public expression of religion shoulders its own cost. The bill would make sure the states and localities are on equal footing with those who are suing them, supporters said.

"Under the current law, the ACLU and its affiliates have a win-win situation. They often get their desired result just by threatening these localities," according to a paper from a congressional office. "It is the localities who must decide whether to roll the dice and gamble by going to court where jurisprudence is unclear, or to capitulate to the ACLU."

The bill's opponents cite the expensive legal costs of federal court cases as a main reason why attorneys should be able to recover their fees.

"The average person often does not have the means to hire an attorney to bring these cases to protect his or her rights," Boston said. "Allowing for recovery of attorneys' fees makes it possible for those of modest means to access the courts and stand up for their rights."

The bill would still allow plaintiffs with legitimate claims to have their day in court, but it would also prevent local cities and towns from being coerced into settling claims out of a fear of large monetary losses, said Brownback, who introduced the bill Jan. 24.

One of the cases the bill's supporters cite as an example of the current problem is from January 2004, when the ACLU received $950,000 in a settlement with the city of San Diego. Although the U.S. Supreme Court had ruled the Boy Scouts could refuse to admit homosexual troop members and troop leaders, the ACLU still was able to succeed in its claim the city was showing favoritism to a religious organization by leasing the Scouts land for $1 a year.

The House of Representatives approved the bill in September with a vote of 244-173, but the Senate never acted on it in the last session. Both were controlled by Republicans at the time; Democrats now control both chambers.

Published, April 2007